Wednesday, September 26, 2012

Ethics opinions in at least eight states have addressed whether a lawyer's use of a third party company that
brokers discounted services to online customers violates rule of professional conduct. I commented on this issue for the first time about a year ago, when the State Bar Associations of both North Carolina and South Carolina approved of the practice (here where you can find links to the opinions).

Since then, a majority (although not by much) of the ethics committees that have considered the issue has found that the practice is not improper. In addition to North Carolina (Ethics Op. 2011-10) and South Carolina (Ethics Op. 11-05), Nebraska (Ethics Op. 12-03) and New York (Ethics Op. 897) have approved the practice. I commented on (and linked to) the NY opinion last January (here).

Maryland is now the most recent jurisdiction to have approved it. The Maryland State Bar Association Committee on Ethic recently issued an opinion holding that the practice is not per se
prohibited as long as the lawyer takes steps to ameliorate potential
ethical concerns that may be implicated by such arrangements. See, Maryland Ethics Op. 2012-07.

In contrast, three states have issued opinions disapproving of the practice: Alabama (Ethics Op. 2012-01),

Wednesday, September 19, 2012

The ABA Commission on Ethics 20/20 has released for comment its most recent drafts of proposals. As explained by one of the commission members over at the Legal Ethics Forum:

The first draft proposal
would permit lawyers and clients to agree that their relationship will be
governed by a specific jurisdiction’s conflict of interest rules. The proposal is designed to help lawyers and their clients predict, with more accuracy than Model Rule 8.5(b) can provide, which jurisdiction’s conflict rules would govern the lawyer’s representation of a client.

The second draft proposal would address a choice of law issue that is arising with greater frequency because of inconsistencies, domestically and abroad, regarding the permissibility of non-lawyer ownership of law
firms and fee sharing with non-lawyers. The issue is whether a lawyer in a jurisdiction that prohibits such ownership or fee sharing may divide a fee with
a lawyer in a different firm in which such ownership or fee sharing occurs and
is permitted by the Rules applicable to that firm.
The Resolution does not propose any change to
the existing prohibition in Model Rule 5.4 against non-lawyer ownership of law
firms or the sharing of fees with non-lawyers.
The Resolution addresses only fee divisions between lawyers in separate
firms under Model Rule 1.5 when one of the lawyers is in a firm that has
nonl-awyer owners or shares fees with non-lawyers, as permitted by the rules of
the jurisdiction that govern that lawyer’s firm.
The
cover memo from the Commission's co-chairs explains that the Commission “has made no decision regarding the
nature and substance of any Resolutions on these subjects. The decision to file
any such Resolutions will be made at the Commission’s October 2012 meeting. In the meantime, the Commission requests that
any comments on these new drafts be sent to Natalia Vera at natalia.vera@americanbar.org by
October 19, 2012.

Back in May I reported Now comes news that starting in 2013, candidates to admission in New York state will be required to show that they have
performed at least 50 hours of law-related pro bono service as a
requirement for admission to the New York state bar. (See here). The proposal generated the never ending debate on whether pro bono should ever be mandatory. For posts on some of the reaction to the proposal go here and here.

Monday, September 17, 2012

The Illinois Review Board has proposed a suspension of two years of an attorney who concealed assets in a bankruptcy by transferring the assets to his friend and law partner. The Legal Profession blog has the story here.

Friday, September 14, 2012

Why is it that so many people are so stupid about how they use Facebook? What is it about Facebook that makes some people do stupid things? Here is a story about a lawyer who caused a mistrial, lost a client and got fired all for posting a photo on Facebook. Here is the first paragraph of the story on the Miami Herald:

A Miami judge declared a mistrial in a murder case Wednesday
after a defense lawyer posted a photo of her client’s leopard-print
underwear on Facebook. The defendant [was] accused of stabbing his girlfriend to death in Hialeah in 2010. [The defendant's]
family brought him a bag of fresh clothes to wear during trial. When
Miami-Dade corrections officers lifted up the pieces for a routine
inspection, [the defendant's] public defender . . . snapped a photo
of [her client’s] briefs with her cellphone, witnesses said. While on a break, the 31-year-old lawyer posted the photo on her
personal Facebook page with a caption suggesting the client’s family
believed the underwear was “proper attire for trial.”

You can read the full story here and more on the story in the ABA Journal.com. The attorney was fired immediately after the court found out about the photo. Her supervisor, Public Defender Carlos
Martinez, is quoted in the Miami Herald story explaining the decision as follows: "Clients are entitled to lawyers’ loyalty and respect. When
a lawyer broadcasts disparaging and humiliating words and pictures, it
undermines the basic client relationship and it gives the appearance
that he is not receiving a fair trial.” I couldn't agree more.

Monday, September 10, 2012

Almost 17 years after the verdict in the OJ Simpson case, former prosecutor in the case Christopher Darden said he believed defense attorney Johnnie Cochran, who died in 2005, tampered with the evidence. Specifically he said he thought Cochran damaged a glove which allowed him to later use the now famous phrase "if it does not fit, you must acquit." The allegation has generated some national attention, including a debate in the Legal Ethics Forum, which has links to articles in Reuters, the Los Angeles Times and Slate. The ABA Journal also has a short piece (with more links) on the story here. The debate at the Legal Ethics Forum is about whether, and at what point, would the prosecutor have the duty to report another attorney's misconduct. If he had enough information and did not report, then he (the prosecutor) engaged in misconduct. If he does not have enough information, then is it improper to make the claim? Go here to see the debate.

Back in July I posted a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties. (See here.) After the story got some national attention, the West Virginia Supreme Court announced that no charges would be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst." See here. Today, however, Professor Jonathan Turley, who has been following the story closely since the beginning, is reporting that things have changed. The judge now faces five charges from the Judicial Investigation Commission, including some based on additional videos showing abusive treatment of other litigants. It turns out, perhaps not surprisingly, that the conduct displayed in the video released in July was not an isolated instance. You can read Prof. Turley's latest comment here. The ABA Journal has more on the story here.

Sunday, September 9, 2012

The Blog of The Legal Times is reporting (here) on an interesting story that involves a clash between the U.S. Justice Department and the D.C. Office of Bar
Counsel over a former federal prosecutor's alleged ethics transgression. At issue is the proper interpretation of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors." The rule is mostly equivalent to the ABA Model Rule with one significant difference.

Both rules state that prosecutors have a duty to timely disclose to the defense "all evidence or information known to
the prosecutor that tends to negate the guilt of the accused or
mitigates the offense." This has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by substantive law. ABA Formal Opinion 09-454 clearly explains that the duty under rule 3.8 is more extensive than the federal constitutional obligation. In particular, Rule 3.8 is not limited to material evidence nor is it limited to information that is likely to lead to an acquittal.

The problem is that the DC version of the rule added a sentence to its comment that says that the rule "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Thus, even though the actual language of both rules is the same, the extent of the duty described has been interpreted differently. The Dept of Justice wants the DC rule to be read to impose a duty to disclose information only if the information is material. The DoJ's brief in the case - In the Matter of Kline - is available here. The brief of the office of Bar Counsel is available here.

This is a tough one because the DC rule's comment says what it says and it is pretty clear. You can make the argument that it is pretty clear the drafters of the rule wanted it to be interpreted differently than the drafters of the ABA model rules. The problem is that that would be a bad interpretation. I happen to agree with the ABA's view on this. The ethical duty should be broader; it should not be limited by materiality. Yet, it seems the authorities in DC thought otherwise when they drafted their version of the rules. It will be interesting to see how this issue is resolved. I hope DC decides to amend the comment and join the ABA in its approach to the prosecutor's duty.

For more on the story, go to the Blog of the Legal Times which has more details and links to relevant documents in the case.

Here is another story worthy of our continuing series on bizarre, dumb or unbelievable conduct deserving of sanctions. In this particular case, the attorney testified that on the date of the incident, he got drunk during lunch and later drove his car into a telephone pole. He was handcuffed, placed in the back of a
police vehicle, and taken to a police station where he allegedly attempted to bribe a police officer with a personal
check. The panel that considered the case noted that "an attorney who would offer to bribe a police officer by means of a
personal check would have to have had his judgment impaired by
something." The case is called In the Matter of Unni Krishnan and the opinion is available here.

One of the first important lessons I always try to get my students to learn is that given the fact that the rules don't provide for sanctions, and the fact that there is so much inconsistency when it comes to sanctions, no matter what the conduct is "you always risk disbarment." To illustrate this, I assign In re Lamberis, 443 N.E.2d 549 (Ill. 1982), in which the hearing board, the review board, the administrator of the disciplinary system, the majority opinion of the Supreme Court and a couple of dissenting judges all proposed different sanctions for the conduct, which wasn't even in the context of the practice of law. (The suggested sanctions were censure, suspension for 3 months, suspension for 6 months and disbarment).

In any case, here is a new case that can also be used to remind everyone that you always risk disbarment. The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an
attorney who withdrew an amount of money from his attorney trust
account resulting in an overdraft of $5.24.

Is it really worth it to risk disbarment for $5 and change...? I don't think so.

Saturday, September 8, 2012

Here is a new installment in our running list on how not to practice law: the Florida Supreme Court has suspended two attorneys for misconduct in connection with their departure as employees of a law firm. In the process of preparing to leave the firm, the attorneys solicited firm clients, made misrepresentations to the firm
and clients, copied files without authorization and more. The court found the use of the files amounted to criminal theft, dishonesty and
conduct prejudicial to the administration of justice. The case is called Florida Bar v. William Henry Winters.

Friday, September 7, 2012

A few days ago I reported that the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees. The new restrictions would require in some cases that a lawyer sign a "memorandum of understanding" to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. My original post, which has links to the memorandum and other sources, is available here.

Yesterday, however, in what has been called "a strong rebuke against the government," the judge in the case refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers. The judge's opinion is available here. He agreed with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power."

Thursday, September 6, 2012

Today is the last day to nominate your favorite blogs for the ABA Journal 's annual 100 best legal blogs list ("Blawg 100"). If you have enjoyed reading my blog, please consider voting for it by going here.

Sunday, September 2, 2012

Richard Zitrin, professor of legal ethics at UC Hastings, has published an article describing how sometimes disastrous accidents make the legal profession look bad. According to the old saying, when a disaster strikes the first two organized groups to show up are the press and the lawyers. This proved to be true last month, when within two days of the Aug. 6 Chevron refinery fire that inundated
Richmond with clouds of black smoke, a swarm of lawyers and their
representatives descended on the city streets.

The problem is that while some of those lawyers were acting unethically, others were not and the authorities enforcing the law did not seem to understand the difference. In the end, it is the profession in general that ends up looking bad. Go here to read the full article.